Lanes v Galliford Try No 2 [2011] EWHC 1234 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

Summary

A clause requiring the referring party to send the referral documents to the adjudicator and other side within 2 days of the appointment of the adjudicator meant that the documents had to be dispatched within 2 days, not received within 2 days; (2) The fact that some of the documents were dispatched up to 2 hours after the deadline did not mean that service had been ineffective - this was not a case where it could be said that service of the referral documents was so late as merit impeachment of the adjudication proceedings.

Technology and Construction Court, Akenhead J


Background

The claimant sub-contractor (“Lanes”) was employed by the defendant main contractor (“Galliford”) to carry out certain works relating to the refurbishment of Inverness Train Depot. The Sub-Contract between the parties incorporated the CECA Form of Sub-Contract (July 1998, February 2008 amendment) which provided for adjudication under the ICE Adjudication Procedure 1997. The parties fell out and the Sub-Contract was terminated with each party blaming the other. Following termination, Galliford commenced adjudication proceedings.

Lanes sought an injunction to restrain Galliford from pursuing the adjudication, advancing two arguments in support of their application. Consideration of the first, that the adjudication agreement was repudiated, was adjourned (for a summary of the decision on that issue click here). This case concerned the second argument, which was that there had been a late sending, service of and receipt by the Adjudicator and Lanes of the referral documents.

The Sub-Contract contained a number of provisions relating to adjudication that were relevant to this case:

Clause 18B(1)(b) stated that the adjudicator was to be appointed and the matter referred to him within 7 days of the Notice of Adjudication.

Paragraph 4.1 of the Adjudication Procedure stated that within 2 days of being notified of the adjudicator’s appointment, the referring party was to send to the adjudicator and the other side the referral documents, being a full statement of its case, including (a) a copy of the Notice of Adjudication; (b) a copy of any adjudication provision in the Contract; and (c) the information on which the referring party relies, including supporting documents.

Paragraph 4.2 of the Adjudication Procedure stated that the date of the referral of the adjudication would be the date that the documents identified in paragraph 4.1 were received by the adjudicator.

The timeline of relevant events was as follows:

  • 21/03/11 (Day 0) Galliford applied to the ICE for an adjudicator to be nominated. They also served the Notice of Adjudication.
  • 24/03/11 (Day 3) Mr Atkinson informed the parties of his appointment.
  • 26/03/11 (Day 5) Deadline for service of the referral documents, in accordance with paragraph 4.1. Galliford served hard copies of the referral notice and statements of case on the Adjudicator. They were unable to serve hard copies on Lanes, as their offices were closed for the weekend. Galliford also served electronic copies of certain supporting documents relevant to quantum on both the Adjudicator and Lanes. Due to the size of the documents, these were not all sent and received before midnight. The last email was received just over an hour later, which due to the clocks changing was in fact 02:06.
  • 27/03/11 (Day 6) Date of receipt of the referral for the purposes of paragraph 4.2 (as identified by the Adjudicator)
  • 28/03/11 (Day 7) Hard copies of the referral notice and statements of case were delivered to Lanes

Issues

The Court considered the following question:

  • Had there been effective service of the referral documents?

Decision

The Court held that:

  • The requirement under paragraph 4.1 was that the documents be dispatched within 2 days, not that they be received within 2 days.
  • In this instance, the referral notice and statements of case were delivered to the Adjudicator within the two day time period, whilst the remainder of the documentation was delivered either within the 2 day period or within a very short period after it.
  • Paragraph 4.1 did not state in terms that, if the referring party failed to serve the referral documents within 2 days, it was in some way barred, although there was clearly an overall longstop envisaged in clause 18B(1)(b) of 7 days from the date of the Notice of Adjudication.
  • Although the deadline for service in paragraph 4.1 had not, therefore, been strictly adhered to, this was not fatal. The Adjudicator was broadly served within the time period. This was not a case where it could be said that service of the referral documents was so late as to merit impeachment of the adjudication proceedings.
  • The fact that the copy of the referral documents was not fully received by Lanes until Monday 28 March didn’t matter. They certainly had the documents by the 7 day longstop.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

 

Click here to read full-screen | Click here to print the case